Outley v. City of Chicago

         Judge Gary Feinerman

          MEMORANDUM OPINION AND ORDER

         Michael Outley sued his employer, the City of Chicago, and three officials of the City's Department of Water Management (“DWM”)-Commissioner Randy Conner, Deputy Commissioner Alan Stark, and Chief Operating Engineer Robert Mussen-alleging violations of Titles VI and VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d-2000e et seq., the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., his union's Collective Bargaining Agreement, the Shakman Accord, and 42 U.S.C. §§ 1981 and 1983. Doc. 55. Defendants move under Civil Rule 12(b)(6) to dismiss most, but not all, of Outley's claims. Doc. 91. The motion is granted in part and denied in part.

         Background

         In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative complaint's well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider “documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice, ” along with additional facts set forth in Outley's brief opposing dismissal, so long as those additional facts “are consistent with the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013) (internal quotation marks omitted). The facts are set forth as favorably to Outley as those materials allow. See Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth the facts at the pleading stage, the court does not vouch for their accuracy. See Goldberg v. United States, 881 F.3d 529, 531 (7th Cir. 2018).

         A. Alleged Failure to Promote to COE

         DWM operates eleven pumping stations, some unmanned and others manned. Doc. 55 at ¶ 20. DWM designates a Chief Operating Engineer (“COE”) to oversee each manned pumping station, while one COE located at the Chicago Avenue Pumping Station supervises all unmanned stations. Id. at ¶¶ 23, 26. Harvey “Skip” Hunker occupied the latter position at all relevant times. Id. at ¶ 27. From 1989 to 2015, all men promoted to COE were white, even though many African-Americans working as Assistant Chief Operating Engineers (“ACOE”) took the test to become COE and/or applied for the position. Id. at ¶ 28.

         Around 1985, the City contracted with DuPage County to build the Lexington Pumping Station and agreed that it would be a manned station. Id. at ¶¶ 21-22. Outley, an African-American man who is now sixty-three or sixty-four years old, began working at Lexington in 1993. Doc. 55 at ¶¶ 8, 18. He started as an operating engineer but soon became an ACOE. Id. at ¶¶ 18-19. At all relevant times, Outley was a member of the International Union of Operating Engineers, Local 399, and was covered by the Local's Collective Bargaining Agreement (“CBA”). Id. at ¶¶ 42-43.

         Around 2010, the COE position at Lexington became open. Id. at ¶ 29. Outley had the most seniority of all ACOEs, and he and other African-American employees had sufficient seniority, experience, and other credentials to qualify for the open position. Id. at ¶¶ 30, 32. But DWM deliberately left the position open until it handpicked a white candidate to fill it. Id. at ¶ 33. Although DWM budgeted for a COE at Lexington, it did not post a bid announcement for the position until 2014 and did not fill it until 2015. Id. at ¶¶ 29, 32, 34.

         When DWM interviews for an open COE position, it permits only those candidates deemed qualified by the City's Department of Human Resources (“DHR”) to advance in the hiring process. Id. at ¶ 41. “Qualified” candidates take a three-part test. Ibid. The City exercised exclusive control of the test through DHR and certain other employees, particularly DWM Deputy Commissioner Alan Stark, which subjected the test to the risk of manipulation. Id. at ¶¶ 35-37. One part of the test was a subjective, in-person panel interview that allowed the interviewers to “elicit certain predetermined catch phrase answers rather than a correct answer to the technical question.” Id. at ¶¶ 38, 40. From 2014 to 2017, the interview panel for open COE positions at Lexington and elsewhere included: (1) Outley's former coworkers who had been promoted over him; (2) persons who were the source of discriminatory communications towards Outley; (3) persons who were named defendants in Outley's then-pending discrimination suit, including Stark; (4) other upper level management; and (5) “other people who may or may not have technical knowledge of the skills necessary for the position of COE.” Id. at ¶ 39. Outley applied for a promotion to COE each year from 2014 to 2017. Id. at ¶ 46. In 2015, DHR denied him the opportunity to sit for the COE examination. Id. at ¶ 50. In 2014, 2016, and 2017, Outley was deemed qualified by DHR, passed each component of the application process, and satisfied all requirements for the promotion, but was not promoted. Id. at ¶¶ 46-47. Instead, DWM manipulated the process to ensure that its pre-selected candidates were promoted, denying Outley the promotion on the basis of his race and/or his age in accordance with the City's “deliberate and pervasive pattern and practice of systemic and continuing employment discrimination against Black employees.” Id. at ¶¶ 45, 48-49, 160.

         Specifically, the City promoted several white employees, including Mark Henmuellen and Joseph Lynch, to COE in 2014. Id. at ¶ 53. In 2015, the City promoted Robert Mussen to the COE position at Lexington. ¶ 54. Mussen, a white man, had test scores that were substantially the same as Outley's, but had less seniority. Id. at ¶¶ 54, 91. The City also promoted Andre Holland and Kathleen Ealey to COE in 2015 and 2017, respectively. Id. at ¶¶ 55, 58. Both were “much younger” and less senior, experienced, and educated than Outley. Id. at ¶¶ 55, 58, 201. Stark and DWM Commissioner Randy Conner exercised ultimate policy making authority over the promotions. Id. at ¶¶ 122, 126.

         B. Alleged Denial of Overtime and “Working Up in Grade” Opportunities and Related Retaliation

         DWM employees are given overtime opportunities based on seniority. Id. at ¶ 84. Although Mussen had less seniority in both time and grade than Outley, he made over $100, 000 in overtime pay while Outley was denied overtime. Id. at ¶¶ 85-88. After Outley complained to DHR, DHR denied him the opportunity to work up in grade, including when Hunker (the COE responsible for overseeing all unmanned stations) was absent due to illness. Id. at ¶ 89. DHR allowed Mussen to work up in grade. Id. at ¶ 91. A Commissioner or Deputy Commissioner must approve opportunities to work overtime or up in grade. Id. at ¶ 96. As COE, Mussen had “ultimate policy making authority over overtime and working up in grade opportunities at Lexington.” Id. at ¶ 97. To support his Monell claim against the City based on this conduct, Outley alleges that “the City has a deliberate and pervasive pattern and practice of systemic and continuing employment discrimination against Black employees, including [Outley] with respect to opportunities for overtime and working up in grade, ” and that the City “deliberately overlooked the seniority of Plaintiff by failing to offer overtime to him at the same rate and under the same conditions that the City provides overtime opportunities to non-Black employees, ” thereby violating its Personnel Rules and Regulations. Id. at ¶¶ 83, 90, 93-94.

         C. Alleged Hostile Work Environment and Related Retaliation

         While at DWM, Outley was: (1) assigned less desirable shifts, days off, and work assignments; (2) denied promotions, transfers, overtime, opportunities to work up in grade, training opportunities, and fair compensation; (3) bullied and intimidated; (4) harassed based on race; (5) subjected to “unwelcomed racially-charged conduct, ” workplace violence, and harsh and undue discipline; and (6) constructively discharged. Id. at ¶ 61. Among other incidents, Outley was “humiliated, harassed, and threatened daily by co-workers, supervisors, and DWM leadership, including … Mussen and Stark.” Id. at ¶ 69. The City, Mussen, Stark, and Conner were aware of “racially insensitive emails, screen savers, posters, cartoons, intimidating items, and graffiti, in various locations within the City's DWM pumping stations, ” which Outley found painful. Id. at ¶ 63. Many African-American DWM employees faced “racial slurs; conduct of a racial nature; racially motivated jokes; racially insensitive communications [like] e-mail, screen savers, posters, cartoons, intimidating items, and graffiti; and unwanted verbal and physical contact based on race.” Id. at ¶ 64.

         Outley questioned his treatment and complained to the City, but in response he was “physically intimidated, threatened, verbally abused, mocked and/or ignored, ” and DWM instituted a “policy of retaliation, ” denying him “promotional, overtime and/or training opportunities.” Id. at ¶¶ 62, 72-74. After Outley was cleared of wrongdoing for a 2013 incident, DHR told him in 2017 that the investigation remained open and held an investigative hearing. Id. at ¶ 66. Despite lacking credibility, several charges against Outley remained open until after he left DWM in July 2017. Ibid.

         To support his Monell claim against the City based on this conduct, Outley alleges that “the City through its DHR and/or its personnel office, maintains written or unwritten policies and/or practices that create, sustain, and proliferate a hostile and abusive work environment for Plaintiff, based on race, and especially within the Lexington Pumping Station”; that those acts were “perpetuated, sustained, and created by deliberate acts allowed, sanctioned, and encouraged by [the] City's DHR”; that there were “written or unwritten policies and/or practices for excessive and unwarranted discipline” for African Americans; that the City “applies workplace rules and regulations in a racially-biased manner”; and that the City maintains “written and unwritten policies and practices regarding evaluation, compensation, and advancement in leadership and promotion” that “subjected [him] to ongoing disparate treatment based on race.” Id. at ¶¶ 59-60, 70, 79. Outley further alleges that the treatment he and his African-American coworkers was “so pervasive that it has become the City['s] standard operating procedure” and a “department-wide pattern and practice.” Id. at ¶¶ 76, 78.

         D. Alleged Constructive Termination

         On May 30, 2017, Mussen followed Outley into the parking lot at Lexington, yanked open the door of Outley's car in an aggressive and threatening manner, and entered the car while mumbling things that Outley could not hear. Id. at ¶¶ 99-100. Outley was afraid that Mussen would physically attack him or damage his car. Id. at ¶ 100. He also thought that Mussen was trying to bait him into an altercation to drum up disciplinary charges or provide a pretext for calling the police, as DWM personnel had unjustifiably done on a previous occasion. Id. at ¶¶ 101-102. Outley reported the incident as an act of workplace violence and asked DHR to preserve security camera footage. Id. at ¶ 106. On a previous occasion, when Plaintiff had been accused of committing violence in the workplace, the City retrieved surveillance footage. Id. at ¶ 109. But the City ignored Outley's request and made no attempt to preserve the footage, even though three Lexington employees witnessed the incident. Id. at ¶¶ 105, 107. Customarily, DHR removes alleged aggressors from the workplace after an employee lodges a workplace violence charge. Id. at ¶ 110. But DHR took no action against Mussen and dismissed Outley's complaint with a finding that the “activities did not rise to the level of violence in the workplace.” Id. at ¶¶ 108, 111.

         Following the incident with Mussen, Outley felt unsafe because he realized he could not seek redress for workplace violence. Id. at ¶ 116. That incident, together with the discriminatory acts described above, made working at DWM intolerable to a reasonable person. Id. at ¶ 115, 119-121, 123. Outley resigned on July 31, 2017. Id. at ¶ 121.

         E. Outley I

         The present suit is Outley's second arising from his employment at DWM. In the first, Outley v. City of Chicago, No. 13 C 1583 (filed Feb. 28, 2013) (Lefkow, J.) (“Outley I”), Outley sued the City and various City employees in their individual and official capacities, including Paul Mazur, Outley's COE and immediate supervisor at the time; DWM Deputy Commissioner Stark; and then-DWM Commissioner Thomas Powers. Outley I, Doc. 118 (Aug. 24, 2016). He alleged race discrimination and retaliation under Title VI, Title VII, and §§ 1981 and 1983. In January 2019, Judge Lefkow granted summary judgment against Outley. Outley I, 354 F.Supp.3d 847 (N.D. Ill. 2019). Final judgment was entered. Outley I, Doc. 205 (Jan. 11, 2019). On Outley's motion, Judge Lefkow then amended the judgment to exclude from its ...